ROBERTSON, JUSTICE, FOR THE COURT:
Today we are presented a demand by the Mississippi State Bar that an able and experienced attorney, many years a member of the bar, be stripped of his license to practice law. The primary predicate of the demand is the action of a federal appeals court finding the attorney guilty of unprofessional conduct and suspending him from practice before its bar for a year.
We have considered the matter carefully and at length. By reason of our rules regarding reciprocal discipline, our respect for the findings of the court of appeals, and our independent examination of the sworn testimony of the attorney, and for the reasons set forth below, we order the attorney's license to practice law suspended for a period of one year.
On January 27, 1984, the Mississippi State Bar (MSB) filed before a Complaint Tribunal of this Court a formal complaint seeking the disbarment of Stanford Young, an attorney who for many years has maintained an office in
Waynesboro, Mississippi. Young was charged with unprofessional and unethical conduct because of his participation in a scheme to bribe former State Bank Comptroller James H. Means.
It appears that on July 20, 1981, Means and an associate of his, Edgar C. Lloyd, Jr., were convicted in the United States District Court of the Southern District of Mississippi of mail fraud, fraud by wire, and aiding and abetting. On January 3, 1983, the United States Court of Appeals for the Fifth Circuit affirmed. United States v. Means, 695 F.2d 811 (5th Cir. 1983). Though a participant in the transaction, Young appeared at the trial of Means and Lloyd as a witness for the prosecution.
After its affirmance and upon the basis of Young's testimony at the Means-Lloyd trial, the Court of Appeals found Young guilty of conduct "unbecoming a member [of the bar] of this Court" and suspended him from practice there for a period of one year. Certification of Young's suspension by the Court of Appeals has been lodged here, as a result of which MSB in Count One of its formal complaint urges that Young's guilt of unprofessional conduct has been conclusively established. Miss. Code Ann. 73-3-341 (Supp. 1984); Rule 13, Rules of Discipline, MSB, effective January 1, 1984. A copy of the Order and Opinion of the Court of Appeals is attached as an Appendix to this opinion.
Count Two of the formal complaint goes to the underlying conduct which has given rise to the suspension by the Court of Appeals and charges Young with bribing or attempting to bribe a state official and perjuring himself before a grand jury in relation to those bribes.
The basis of the bribery complaint was that Young had been hired by incorporators to assist in obtaining a charter to operate a new bank in Moss Point, Mississippi, to be known as the Singing River Bank. During the course of attempting to obtain this charter, Young allegedly entered into an agreement with Lloyd by which Lloyd would purchase $50,000.00 in Singing River Bank stock with the understanding that the new bank would buy the stock back within two years for $100,000.00 - for a net profit to Lloyd of $50,000.00 - in return for Lloyd's influence with Comptroller Means for the charter's issue. Means was a "participant" in this arrangement. See United States v. Means, 695 F.2d at 815.
Young accepted this deal on the part of the incorporators and on October 10, 1974, on recommendation of Means, the banking board issued certification to authorize incorporation.
On July 14, 1975, Lloyd purchased $50,000.00 in Singing River Bank stock. After taking care of Lloyd's indebtedness arising from his stock purchase loan - all at no cost to Lloyd, Young, on December 9, 1976, delivered to Lloyd a cashier's check for $39,126.80, the net proceeds from the repurchase from Lloyd of the Singing River Bank stock. United States v. Means, 695 F.2d at 813-14. Lloyd and Means then split their loot. United States v. Means, 695 F.2d at 815.
Young was summoned to testify before a federal grand jury investigating possible influence peddling by Lloyd and Means in the issuance of the bank charter. According to the formal complaint, Young provided false information to the grand jury regarding his dealings with Lloyd in the procurement of the Singing River Bank charter at the first hearing and was given an opportunity to reappear before the grand jury and recant. In his testimony at the trial of Lloyd and Means, again, according to the formal complaint (and according to the opinion issued by the Fifth Circuit), Young admitted giving false testimony before the grand jury in his first appearance.
MSB's January 27, 1984 complaint was not the first occasion upon which disciplinary action against Young was sought arising out of the Singing River Bank affair. On September 17, 1981, prior to the Means-Lloyd trial, a complaint, No. 81-48-1, was filed alleging that Young had bribed or bought influence and had perjured himself before the grand jury. Young filed a motion seeking dismissal of the complaint. The complaint was dismissed by the Committee on Complaints by letter dated May 20, 1982. No investigatory hearing was held on the matter.
MSB, in the case at bar, alleges that the original complaint was dismissed in part because of misleading information filed by Young with its Committee on Complaints. Another reason for the dismissal was inability to obtain transcripts of the grand jury proceedings because of appeals underway.
When the Court of Appeals issued its written opinions affirming the Lloyd and Means conviction and suspending Young from practice before its bar, MSB filed a second formal complaint, No. 83-16-1, the complaint before us this day. Young answered arguing as affirmative defenses res judicata, collateral estoppel, double jeopardy, equitable estoppel, unconstitutional denial of due process, statute of limitations and violation of confidentiality. A motion was filed by Young similarly asking for dismissal of the formal complaint on grounds of res judicata, collateral estoppel and statute of limitations.
A Supreme Court Complaint Tribunal was duly constituted to hear Young's motion to dismiss the second complaint. On August 30, 1984, the Tribunal sustained Young's motion to dismiss announcing its view that the proceedings upon Complaint No. 83-16-1 offended the double jeopardy provisions of Article 3, Section 22 of the Mississippi Constitution and of the Fifth and Fourteenth Amendments of the United States Constitution. The Tribunal further found that collateral estoppel prevented the presentation of any evidence on issues present in the first complaint.
MSB has now appealed to this Court, see Miss. Code Ann. 73-3-329 (3) (Supp. 1984), as supplanted by Rule 9, Rules of Discipline, MSB, requesting a de novo review and that upon Count One of its Complaint, Young be disbarred.
The Mississippi State Bar charges as error the ruling of the Complaint Tribunal that the present proceedings against Young are precluded under the double jeopardy clauses of state and federal constitutions. Here, of course, the Tribunal proceeded with reference to the May 20, 1982 dismissal of Case No. 81-48-1 by the MSB Complaints Committee.
It is certainly true that we have heretofore considered bar disciplinary proceedings inherently adversary and of a quasi-criminal nature and have labeled them as such. Attorney K v. Mississippi State Bar Association, 491 So. 2d 220, 222 (Miss. 1986); Levi v. Mississippi State Bar, 436 So. 2d 781, 783 (Miss. 1983); see also In Re Ruffalo, 390 U.S. 544, 551, 88 S. Ct. 1222, 1226, 20 L.Ed.2d 117, 122 (1968). We have repeatedly held that attorneys who are accused in bar disciplinary proceedings have the right to due process of law, Attorney K. v. Mississippi State Bar Association, 491 So. 2d 220, 222 (Miss. 1986); Myers v. Mississippi State Bar, 480 So. 2d 1080, 1087 (Miss. 1985); Netterville v. Mississippi State Bar, 397 So. 2d 878, 883-84 (Miss. 1981), although it is not at all clear that attorneys would be without this right if disciplinary proceedings were regarded as wholly civil in nature. On the other hand there are among the procedural trappings normally attendant upon a criminal trial numerous "rights" which have no place in bar disciplinary proceedings. For one thing, the attorney has no right to trial by jury. For another, the attorney's "guilt" need not be established beyond a reasonable doubt, as in criminal cases, see Jackson v. Virginia, 443 U.S. 307, 309, 99 S. Ct. 2781, 61 L.Ed.2d 560,
567 (1979), but may be established by that lesser quantum of proof we label "clear and convincing evidence." Brumfield v. Mississippi State Bar, 497 So. 2d 800, 807 (Miss. 1986); Levi v. Mississippi State Bar, 436 So. 2d 781, 783-84 (Miss. 1983).
Whether double jeopardy rights attach in bar disciplinary proceedings is a question we have never decided, nor do we provide an answer today. *fn1 For assuming, without deciding, that the criminal mode of proceedings applies here, the Tribunal nevertheless was in error. We have nothing before us which suggests that the dismissal of the complaint in Case No. 81-48-1 was a dismissal on the merits or, more precisely, was a dismissal after jeopardy had attached. The earlier proceedings were before the MSB Committee on Complaints. No investigatory hearing was ever held.
By analogy to the criminal process, the Committee on Complaints functions somewhat as a grand jury. Clark v. Mississippi State Bar Association, 471 So. 2d 352, 357 (Miss. 1985). The dismissal of the complaint in No. 81-48-1 occurred at a preliminary inquiry stage, the functional equivalent of a grand jury's refusal to indict, if not a magistrate's refusal to bind a defendant over to await action of the next grand jury.
We entertain serious doubts that double jeopardy protections apply at all in bar disciplinary proceedings - for the reasons enumerated in the many cases cited in footnote 1 above - although today's decision should not be taken as the final word on the point. Assuming arguendo that the double jeopardy clauses do apply, we hold that dismissal of the complaint in Case No. 81-48-1 was at a stage sufficiently early that prosecution of the new complaint No. 83-16-1 would violate no double jeopardy rights.
In the alternative, the Complaint Tribunal invoked the doctrines of res judicata and collateral estoppel and held proceedings under the present complaint precluded. On appeal the MSB assigns this as error. We agree.
The Tribunal determined that it would ". . . not permit petitioner (Mississippi State Bar) to rehash or relitigate matters and issues or present the same evidence, in being, at the disposal of petitioner, when the former complaint against respondent was considered in Cause No. 81-48-1, . . . . It is the collective opinion of the Tribunal that the doctrine of collateral estoppel prevents ...